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Responsible Bidder Provision

Violating Responsible Bidder Provision Jeopardizes Chances of Doing Business with the State

In R.L. Brink v. Schneider, the Illinois Appellate Court determined that the Illinois Department of Transportation was justified in imposing a two-year suspension on R.L. Brink Corporation based on the determination that Brink had made material representation on previous bids. The material misrepresentations ran afoul of the “responsible bidder provision” required by section 30-22(6) of article 30 of the Procurement Code.

The Responsible Bidder Provision

Section 30-22(6) of article 30 of the Procurement Code is most commonly referred to as “the responsible bidder provision.” It is a requirement that must be met in order to properly offer a bid on any State-funded road construction project. To qualify as a responsible bidder, a bidder must satisfy a list of requirements. The requirement at issue in this case is as follows:

                        (6)  The bidder and all bidder’s subcontractors must participate in applicable

apprenticeship training programs approved by and registered with the United States Department of Labor’s Bureau of Apprenticeship and Training. 30 ILCS 500/30-22(6)

To ensure compliance with the responsible bidder provision, all bids for State-funded road construction projects must contain a certification. Section K of the certification was the focal point of this case. Section K includes a statement that “The bidder is responsible for making a complete report and shall make certain that each type of work or craft job category that will be utilized on the project as reported on the Construction Employee Workforce Projection Form and returned with the bid is accounted for and listed.”

The Department reached the determination that Brink made material representation on bids with the intention of circumventing the responsible bidder provision. This led to a 120 suspension which was addressed at an administrative hearing.

The Facts of R.L. Brink v. Schneider, 2014 IL App (4th) 130979-U

In December of 2012, the Illinois Department of Transportation (Department) issued a final determination of suspension. The suspension prohibited R.L. Brinks Corporation (Brinks) from participation in any contracts awarded or needing approval from the Department for two years due to what was deemed to be material misrepresentations violating the responsible bidder qualification explicitly required by the Procurement Code. The bids at issue pertain to three construction projects: Brown County Road, Hancock County Road, and Adams County Road.

With regard to the Brown County Road construction project, Brink completed the requisite Section K of the certification, but did not list that any of its subcontractors intended to use the trade of “laborer” for the project. More specifically, a handwritten note in the certification explicitly stated that “operators” would be employed and subcontractors would employ “stripers” and “ironworkers.” This statement was in conflict with another document in the bid which estimated the use of two laborers for the project. Additionally, in order to address a union protest that later arose regarding the trade of laborer on the project, Brink sent the department what was allegedly the certification initially submitted in the project bid. This certification had a typewritten statement specifying that Brink would be employing operators and subcontractors would be employing stripers, ironworkers, operators, and laborers. Brink provided a certificate of registration showing that subcontractors participated in the apprenticeship and training program of the laborer trade. Relying on Brink’s response, the Department denied the union protest.

For the Hancock County Road construction project, in the section K certification, Brink reported that it would perform work in the operator, carpenter, and cement mason trades and its subcontractors would employ stripers, operators, laborers, and cement masons. A union protest arose from laborers on the project. In response to the protest, Brink submitted the certification from the original bid which stated that its employees would perform work in the operator, carpenter, and cementer mason trades, and its subcontractors would employee stripers. Once again, the Department denied the protest based on Brink’s response. The Adams County Road construction project involved a fact pattern similar to those regarding the other projects.

The Administrative Hearing and Trial

After conducting an evidentiary hearing, the hearing officer found that Brink had submitted responses to the protests that included information that deviated from that which was submitted for the original project bids. The hearing officer sided with the Department which had based Brink’s suspension on what they stated to be actions showing a lack of “integrity and honesty in the conduct of business or the performance of contracts pursuant to section 6.520 of Title 44 of the Administrative Code.” The Department found such actions to materially violate rules of procurement procedure and run afoul of the responsible bidder provision. The hearing officer sided with the Department and the case proceeded to trial.

The Trial Court also concluded that Brink made material misrepresentation in violation of the responsible bidder provision of the Procurement Code. The Court affirmed the Department’s decision to impose a two-year suspension on Brink. Brink appealed.

The Appeal

Brink’s main argument on appeal was that the Department erred in finding that Brink made material misrepresentations in violation of the responsible bidder provision of section 30-22(6) of the Procurement code. Brink asserted that the company should be permitted to submit a bid that only listed its participation in the applicable USDOL operating engineer apprenticeship and training programs to satisfy the responsible bidder provision. The Court found this argument to be without merit as this would give an individual contractor the power to subjectively determine the applicable apprenticeship and training programs in order to comply with the responsible bidder provision. The Court asserted that the plain language of the Procurement Code provides for an objective standard.

In its analysis, the Court stated that if the USDOL, “has an approved and registered apprenticeship and training program for the type of work or craft a contractor or subcontractor identifies will be performed on the proposed project, then the entity actually performing the work or craft must also participate in the specific USDOL apprenticeship and training program.” The Court found the undisputed evidence to show that Brink had employed personnel performing work normally associated with the laborer trade. It was also clear that they had not participated in a USDOL apprenticeship and training program for laborers. Brink failed to disclose either of these important points in the Department’s section K certification in the bid proposals at issue in this case.

In conclusion, the Court found that the Department was justified in its determination that Brink made materially false statements that violated the responsible bidder provision of the Procurement Code.

Learn more about 1818’s government procurement services.

The information in this blog post is provided for informational purposes only and is not intended to be legal advice. You should not make a decision whether or not to contact an attorney based upon the information in this blog post. No attorney-client relationship is formed nor should any such relationship be implied. If you require legal advice, please consult with an attorney licensed to practice in your jurisdiction.

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